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Tribal Justice Systems

This short paper is produced for the Allegheny College conference Democracy Realized? The Legacies of the Civil Rights Movement (March 28-29, 2014).

United States Supreme Court Justice Hugo Black, a former member of the Ku Klux Klan, authored the Court’s opinion in Williams v. Lee, a decision hailed as the opening salvo in the modern era of federal Indian law. The Williams decision was the work of the liberal wing of the Court, with important input by Chief Justice Warren and Justices Brennan and Douglas. Williams, a ringing endorsement of inherent tribal governance authority, more specifically endorsed tribal justices systems as embodied in tribal courts. Without Williams and similar cases, it is unlikely that tribal governments and Congress would act to develop tribal justice systems. Williams, and the tribal courts that arose as a result, was a powerful civil rights decision that commentators rightfully have linked to Brown v. Board of Education.

This paper will survey several tribal justice systems in an effort to identify commonalities and complexities. There are hundreds of tribal justice systems in the United States; each of them unique in the details, but many of them similar to other tribal, state, and federal courts.

The paper is divided into three sections. The first two parts include a section on adversarial tribal justice systems and a section on non-adversarial tribal justice systems, often called restorative justice systems. The third part involves greater discussion of the complexities of incorporating tribal customary and traditional law into tribal common law.